Anderson v. Kelley
| Decision Date | 28 March 2017 |
| Docket Number | No. 5:12-cv-279-DPM,5:12-cv-279-DPM |
| Parties | JUSTIN ANDERSON PETITIONER v. WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT |
| Court | U.S. District Court — Eastern District of Arkansas |
1. Seventeen Octobers ago, Justin Anderson shot and killed Clara Creech. There was a randomness about it. Creech, who was in her eighties, was bent down, working in her front yard in the small town of Lewisville. Anderson didn't know her; he came upon her as he walked down the street. Anderson was nineteen. He had lost his job; he was living with his brother and his brother's girlfriend. In the ten days before, Anderson had burgled a house and stolen two guns, and shot a truck driver who happened to be asleep in the cab of his tractor when Anderson tried to rob it. Anderson was probably trying to steal Creech's car to heal a rift with his brother. Anderson confessed. From the beginning, he hasn't denied shooting Creech. He has maintained, instead, that he did so without premeditation or deliberation, and thus didn't commit capital murder. A Lafayette County jury rejected this defense, convicted Anderson, and chose the death penalty.
The case then began its journey—up, down, and around the state and federal courts. The Arkansas Supreme Court affirmed the conviction but reversed the sentence because of obvious confusion about mitigation reflected in the first jury's sentencing verdict forms. Anderson v. State (Anderson I), 357 Ark. 180, 163 S.W.3d 333 (2004). To address pretrial publicity, venue was changed to Miller County, which adjoins Lafayette County in south Arkansas. At the end of an eight-day trial, the second jury came to several conclusions: there were many mitigating circumstances; there was one aggravating circumstance (Anderson's attempted-murder conviction for shooting the truck driver); and the aggravator outweighed all the mitigators. The second jury therefore also chose the death penalty. (For legal reasons that will become clearer, one hub of the case now is the performance of Anderson's lawyers as they prepared for and handled this resentencing trial.)
The Arkansas Supreme Court affirmed. Anderson v. State (Anderson II), 367 Ark. 536, 242 S.W.3d 229 (2006). The United States Supreme Court denied review. Anderson v. Arkansas, 551 U.S. 1133 (2007). Anderson then returned to the Miller County Circuit Court, seeking post-conviction relief. None was granted. The Arkansas Supreme Court later affirmed that none was required.Anderson v. State (Anderson III), 2011 Ark. 488, 385 S.W.3d 783. Anderson's timely petition for a writ of habeas corpus brought the case here.
2. The governing legal framework is settled but complicated. The Court recently summarized that law in Kemp v. Hobbs, No. 5:03-cv-55-DPM, No 68 at 8-11. In the next few paragraphs, the Court mostly quotes that summary, revised to refer to Anderson instead of Kemp.
To have preserved a claim for relief, Anderson must have properly exhausted his state remedies by fairly presenting that claim to the Arkansas courts and allowing them to rule on it. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). "[A] claim has not been fairly presented to the state courts unless the same factual grounds and legal theories asserted in the prisoner's federal habeas petition have been properly raised in the prisoner's state court proceedings." Krimmel v. Hopkins, 56 F.3d 873, 876 (8th Cir. 1995). Anderson can lose a claim to procedural default at any level of state-court review: trial, direct appeal, or state post-conviction proceedings. Kilmartin v. Kemna, 253 F.3d 1087, 1088 (8th Cir. 2001).
Once a claim is defaulted, this federal Court can consider it only if Anderson can show either cause for the default and actual prejudice, or that the default will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. "[T]he cause standard requires [Anderson] to show that some objective factor external to the defense impeded counsel's efforts to raise the claim in state court." McCleskey v. Zant, 499 U.S. 467, 493 (1991) (quotations omitted). Examples of cause include constitutionally ineffective assistance of counsel, an unavailable factual or legal basis for a claim, or interference by state officials that made complying with the exhaustion requirements impracticable. Murray v. Carrier, 477 U.S. 478, 488-89 (1986). Anderson must also show "not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." 477 U.S. at 494 (quotations omitted and emphasis original).
An equitable exception exists to excuse the procedural default of ineffectiveness-of-trial-counsel claims—if the claim is substantial and post-conviction counsel was ineffective in not raising it. Martinez v. Ryan, 566 U.S. 1, 14 (2012); Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013). A substantialineffectiveness claim is one that has "some merit." Martinez, 566 U.S. at 14. Anderson must show deficient performance and resulting prejudice under Strickland v. Washington, 466 U.S. 668 (1984). The Court assumes Anderson has made a sufficient showing that post-conviction counsel was ineffective in not raising his ineffectiveness-of-trial-counsel claims.
For his claims that the Arkansas courts decided on the merits, Anderson can obtain federal habeas relief only in two limited circumstances. This Court can grant relief only if the state's adjudication: " (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
A decision is contrary to clearly established federal law if the rule the state court applied directly contradicted Supreme Court precedent or if, when faced with "materially indistinguishable" facts, the state court reached a decision opposite the Supreme Court's. Kinder v. Bowersox, 272 F.3d 532, 537-38 (8th Cir. 2001). "As for an unreasonable application of the law, wemust remember that unreasonable is not the same as incorrect." 272 F.3d at 538 (quotations omitted). Although a state court's application of federal law might be mistaken in this Court's independent judgment, that does not mean that it is objectively unreasonable. Ibid. Finally, the state court's factual findings are presumed correct unless Anderson "can rebut the presumption by clear and convincing evidence." Rousan v. Roper, 436 F.3d 951, 956 (8th Cir. 2006).
3. Anderson's petition is a vast fabric. It has twenty-one claims, which embrace seventy-eight subclaims, some of which have subparts. See Appendix A. The claims and supporting points, moreover, are a weave of incorporated contentions. Anderson's comprehensive argument is the product of appointed counsel's zealous, and able, advocacy. (Counsel for respondent Kelley have been equally zealous and able.) As the Court noted in its previous Orders, No 31 & 79, Anderson's new allegations about mental illness, brain damage, childhood trauma, and the neurobiological limitations of young people are the strongest. Because Anderson didn't fully present these issues to the Arkansas courts, this federal court can reach them only if his former lawyers were constitutionally ineffective in their related work.That's the door created by Martinez and Trevino. His lawyers' work, and necessarily the merits of these new allegations, were the main subjects of the four-day evidentiary hearing. More about all that in a moment.
The rest of Anderson's claims are important but secondary. Their resolution is clear. The Court has therefore analyzed and decided them in a series of appendices—organized by subject. This is the best way to scrutinize the fabric. Anderson's several arguments for not raising various non-hearing claims in state court aren't persuasive. His procedural defaults aren't excused. See Appendix B. And even looking past his defaults to the merits, these claims fail. Settled precedent stops several of them at the door. For example, the death penalty is constitutional. See Appendix C. Anderson's various attacks on his audio-taped confession, and related ineffectiveness claims, fail: the Arkansas courts adequately addressed the merits there; and his lawyers weren't ineffective. See Appendix D. None of Anderson's points about problems in voir dire, some of which are new, make any headway. Potential jurors were questioned adequately; he hasn't demonstrated that any juror was biased. See Appendix E. Anderson's venue-related arguments fail too. See Appendix F. Anderson says that his lawyers fumbled the mental-capacity evidence in hand, as distinguished from his new claims about their not pushing deeper and wider to get different capacity evidence. These supposedly fumbled claims also fail for various reasons. See Appendix G. His improper-evidence claims don't fare any better. See Appendix H. Anderson also makes a miscellany of claims that he didn't present to the Arkansas courts. They, too, fail on the merits. See Appendix I. Last, Anderson's argument that he is actually innocent of the death penalty is unconvincing. See Appendix J.
4. Now back to the claims on which the Court heard four days of evidence and argument. Anderson's ineffectiveness claims—related to new evidence of an underdeveloped, damaged brain—cannot overcome the overwhelming evidence that he's guilty of capital murder. Whether Strickland required his lawyers to do more at resentencing, and whether it would have made a difference, are harder questions. In this Court's judgment, though, Anderson hasn't demonstrated a substantial claim of ineffectiveness. His lawyers' resentencing work wasn't constitutionally...
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